BDSMD/s and the Law
- This article is being archived on SM-201.org All copyrights are retained by its author.
The information which follows was donated to gloria-brame.com in 1998 by Rumpoule as a special service to the SM/fetish communities. Rumpoule is no longer accepting queries or email: this page offers some of his legal opinions on BDSM issues important to us all.
BDSMD/s and the Law
copyright © 1998 RUMPOULE
I am Rumpoule, and welcome to my page.
A Little About Me
I have been a criminal defense lawyer for over twenty years. I've also been in the leather lifestyle for nearly twenty-five years. I am submissive to women as a preferred form of sexuality and lifestyle.
I decided I wanted to give something back to people who, like me, have a different kind sexuality or lifestyle by learning about how the law affects us. I want to collect and pass that information on to the community's members by giving lectures and acting as a resource.
Introduction
As you read this, you may find it to be a little frightening. Please remember that, in a legal sense just as in health considerations, there is no such thing as "safe sex." There is however, with education, "safer sex." Just as in the health arena, education and caution can help to avoid frightening results. So be aware of what you are doing, act responsibly, and you will find you can avoid that which you may fear.
Please keep in mind that there are 50 states, the District of Columbia and the United States. Federal laws generally do not have much impact. In fact, J. Edgar Hoover once said, "I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce."
Also, within each state, there are counties and cities. Each of these areas has their own laws. It would be impossible to inform you of the specific laws in each of these areas. Also, laws change quickly, so what I might write today, may be wrong tomorrow.
So I am only able to tell you the areas of concern and give you the law generally and, in some instances, make specific references to illustrate certain ideas. Please use this information as a guide only.
Last, while I feel I have something to offer the community from my experience and knowledge, this is an area of law that has never really been developed. To be very honest, I am learning this as I go. Being a good resource sometimes requires me to listen or read more than to speak or write.
SM Play Generally
Possible Criminal Charges
The area that I am asked about most often is assault. Tops are afraid they will be charged with assault for their actions. Bottoms have different, but related fears. Assault is generally defined as any touching done with the intent to injure, insult or provoke. In many places simple assaults can be made into "aggravated" assaults depending on certain circumstances related to the status of the victim or the use of objects or weapons.
In most places, "consent" is a defense to assault. However, you should be aware that consent is not always going to be available as a defense. For example, in the Spanner case, 16 gay men in England doing SM privately were arrested and charged with a number of crimes. Regarding assault charges, the defense of "consent" was raised, but denied by the court on the grounds of "public policy." Basically the court decided that the law should not allow someone to consent to be assaulted. Most interesting of the cases was that of John Atkinson, a bottom, who was convicted solely of having aided and abetted others in his own assault.
Consent will also not stand as a defense when the victim lacked the capacity to consent. So if the Bottom is under the influence of drugs or alcohol, their ability to give meaningful consent may be impaired.
Similarly, if consent is obtained by fraud, it will not be available as a defense. So, for example, if a Top misrepresents his abilities or experience, say with a single-tail whip, he may not be able to claim consent as a defense if charged.
Other potential criminal charges include sexual assault if sex play is involved and kidnapping and false imprisonment if bondage is used. While these crimes are different from assault, usually the defense will be consent. Again, consent may be a defense as long as the jurisdiction does not prohibit it for public policy reasons, and if the "victim" has the capacity to give consent and does so knowledgeably.
Indecent or lewd conduct is also a crime on the books of many states. Usually this requires exposing parts of the body, or engaging in conduct that is considered lewd or indecent by the public. You should be careful when engaging in "public" scenes. If the activity is done privately, or in semi-public space where participants have been warned and consented to being exposed to what will be happening, there should not be any problem.
Possession of illegal weapons, objects or substances is another area of concern. This is an area where local laws differ a lot. Be careful of carrying a concealed weapon if you do not have a permit to do so. Remember that some weapons may be illegal, or cannot be carried concealed depending on their character. A simple folding pocketknife may be legal to carry concealed in your pocket in most places. But in some places, depending on the blade size, it may not. Needles may be illegal to possess in some places. And remember that it may be illegal to wear an authentic police, fire or military uniform.
Sodomy laws still existed in 20 states as of 1994. In 1986 in Bowers v. Hardwick, the United States Supreme Court ruled that the constitutional right to privacy (recognized in Griswald v. Connecticut dealing with the right to birth control devices) does not extend to homosexual sodomy. Hardwick was a gay Atlanta man who filed an action to have the Georgia sodomy statute declared unconstitutional. The fact that he was not imprisoned or charged affected the swing vote of Justice Lewis Powell. Powell held there was no privacy right violation, but wrote that imprisonment for such conduct might constitute cruel and unusual punishment under the 8th Amendment. After retiring, Powell said that he probably erred in not finding a privacy right. However, in early March, 1998 the U.S. Supreme Court ruled for the first time in Oncale v. Sundowner Offshore, that unlawful sexual harassment in the workplace extends to incidents involving employees of the same sex. Ironically, in order to keep the case from being a "gay rights" case, the court reasoned with a broader brush saying "harassment is harassment." Thus there may be application of the case to BDSM, D/s situations.
Advice
Remember that although you may have negotiated a scene with someone, the public around you was not part of those discussions and may not understand what you are doing is consensual and someone may call the police. Also, since the O.J. Simpson case, the police have taken a hard line on domestic abuse situations and frequently will make an arrest even when the "victim" says what happened was consensual.
If the police do show up the first thing you must remember to do is to stay calm. If you lose your calm, or get belligerent or indignant with officers, they will not listen to you.
You may have a choice in some things, and not in others. If the police arrive at your home because neighbors have heard blood-curdling screams, they have a duty, and the right, to make sure everyone one is all right. While your activities are safe, sane and consensual, we all want the police to be able to enter a home in an emergency situation to rescue someone who is the victim of a violent criminal. Again, remembering to stay calm will help a great deal. And not just the Top! It is even more important for the Bottom to be able to speak calmly and confidently to the police and explain that while he or she was screaming, it was all being done for mutual enjoyment and with consent.
If, for some reason, you do not want the police to enter your home, you should say so in a calm voice and in clear terms such as, "no, you may not enter," or "no, you do not have my permission to search," or "I want you to leave now." The police may threaten to get a warrant. But don't be intimidated by their threat to do that. On the other hand, if the police, despite this, tell you they are going to enter, then step aside and do not resist.
If you have been arrested, you should remain silent. You should also remain calm and, regardless of whether the officers are right or wrong, do not resist them. You should also remember, and record in writing as soon as possible before your memory fades, the name and badge numbers of the officers as well as the facts of what happened. Record this on a piece of paper and, at the top of the paper, write in bold letters, "FOR MY ATTORNEY."
You should consult with a lawyer as soon as you can. Do not discuss the case with ANYONE except an attorney.
If you have not been arrested but, for some reason, do not want to speak to the police, you do not have to. Again, if you intend to remain silent, do so in a calm voice and in clear terms such as "I don't want to talk to you," or "I want to speak to a lawyer first."
On the other hand, if you have not been arrested, and talking to the police seems like a good thing to do to explain an innocent situation, remember one thing: tell the truth. Do not say anything that is untruthful and do not hide anything.
Sometimes, criminals who do not believe in safe, sane and consensual conduct victimize members of our community. Someone may consent to bondage and flogging, but not sexual activity, and find they themselves to be the victim of a sexual assault. If this happens, you need to decide quickly if you are going to report the offense to the police. It is a personal decision. But if you want a successful prosecution of the assailant, you should do some things to help.
- Stay calm.
- Get medical assistance.
- Call the police immediately.
- Do not shower, urinate, or clean up.
- Take pictures.
- You may also wish to consult with an attorney or get other support from friends.
BDSM, D/s Pornography
Pornography is far too large of a subject for this forum, but a few things need to be touched on. Private possession of sexually explicit materials is not likely to be a problem other than in two areas.
One of these areas relates to children. It is a crime in ALL states to furnish a minor with pornography. In a lot of cases, predators of children would not actually show children pornography, but would leave it out and rely on the natural inquisitiveness of children. They would claim that they did not show these materials to children. In response, most states have passed laws that make it a crime to recklessly or negligently expose children to pornography. As a result, in many states there is strict liability under these laws.
If you have sexually explicit materials in your home and children get their hands on them, you may be found guilty of an extremely serious offense. This is close to what happened in the Horton case.
ProDommes and Prostitution and Pandering
Prostitution is usually defined as "sexual conduct for money." A number of professional dominants, male submissives that wanted to see professional dominants, and people wishing to start private dungeons and place spaces that require an admission fee have consulted me.
The laws in this area vary a great deal from state to state. For example, in most areas of California, professional dommes are not arrested for prostitution as long as there is no "sexual contact" with the client. However, in Arizona, prostitution is defined to include "Sadomasochistic abuse" which is further defined to include, "flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed."
Penalties can vary as well. Usually prostitution is a misdemeanor. But, even still, depending on local laws, a conviction can result in a lengthy sentence.
Prostitution laws also apply to the clients as well. In most states, law enforcement not only set up "stings" on prostitutes by posing as clients, but also set up stings on the clients by posing as prostitutes.
Misdemeanor prostitution can suddenly become a pandering or "pimping" charge if others are employed in prostitution offenses. This is usually a felony in most states. Pandering charges have been applied in some cases where people have opened private "SM clubs" and charged for admittance. Probably there is no problem where people are on their own in finding partners. But where partners are provided by management, even if there is not an extra charge, charges have been brought.
So, be very careful any time money is being charged in connection with a sexually related activity. Especially when there is a profit that goes into someone's pocket, rather than covering expenses.
The best thing to do is contact an experienced criminal defense attorney in your area to learn not only the laws, but what police enforcement and prosecution policies are.
On a lighter note, in the Netherlands where prostitution is legal, the Fire Marshall announced a regulation that that customers could not be put in bondage that took longer than 30 seconds to release.
Possible Civil Charges
Anything that can result in criminal charges can also result in a civil complaint as well. A prosecutor brings criminal charges after reviewing the police reports and evidence. Civil charges, or lawsuits, can be brought by individual citizens, but can only result in monetary damages and not incarceration.
The proof required in a civil suit is less than the "proof beyond reasonable doubt" standard in a criminal case.
In addition to the matters discussed for criminal prosecution, civil suits may cover a number of other matters as well. Actions for negligence, for example, may be brought for providing faulty equipment or failing to maintain it. Or for failing to exercise due care in building it. Thus, for example, if someone is suspended from a 2x2 piece of wood and it breaks, the person or entity responsible for setting up the scene equipment could be held liable for the injuries.
Private and public play spaces and equipment needs to be carefully inspected and maintained. The premises must satisfy local fire codes giving consideration to the materials used and having accessible and well-lighted exit signs.
Another matter that I wonder about is when people or groups make representations of safety. Aside from negating consent as discussed above, you can be held to a higher standard if you promise someone a "safe" place to play out fantasies. You can become a guarantor of whatever you promise, even if you were not negligent and did anything any reasonable person could do. It is best to tell people that you try to maintain these standards, but that they, too, must take responsibility for the safety of their own play.
Some people use waivers to try to protect themselves or their groups from liability for injuries. Waivers are generally, but not always, unenforceable because, as a matter of public policy it is considered a bad idea to allow people to waive liability for another person's negligence.
However, while not an absolute defense, waivers can be evidence to show that the injured person assumed the risk of their conduct in participating in the event or activity. Similarly, waivers can be used to show the state of mind of the person who signed the waiver and that they were aware of various inherent risks in what they were doing. So make sure the "waiver" spells out potential risk. Waivers with specific risks spelled out are a good idea but do not count on them for absolute protection.
Premises liability insurance to cover faulty equipment, loose carpeting, and other matters is also a good idea.
Master-Slave Contracts.
- Master/Slave contracts are not binding.
They do serve other good purposes however in the same way that a well-drafted waiver does. That is to say, to show the knowledge, intent, and state of mind of the parties at the time the contract is signed. Such contracts can be used to show what the parties agreed to and that they were aware of certain risks. They can spell out the promises that have been made, and not made, with regard to property just like a pre-nuptial agreement.
The parties might also want to have witnesses who would be willing to come to court and testify about the circumstances of the signing and/or ceremony to establish that the agreement was entered into voluntarily, consensually, and without coercion or force.
Bars and Liquor Control, and Alcohol/Drug use
Generally speaking, when alcohol is being served in public, the government is allowed to be much stricter than in other situations. Thus there are a number of things to be concerned about depending on your state or local laws.
Often it is unlawful for someone to expose their nipples (if female), pubic hair, genitals, anus, or even the cleft of the anus. Wearing a device that simulates any of the areas which must be covered may also be prohibited. Touching or fondling, directly or indirectly, breasts, buttocks, or genitals may be unlawful.
There may be increased liability when alcohol or drugs are involved. This is true even in a private setting.
Divorce and Child Custody
This is a particularly difficult and frightening area.
The first thing you must remember is that if there is even a hint of a problem with your lifestyle as it relates to your children, you need to contact an attorney right away.
I would like to say that sexual lifestyle is not considered by the courts in determining issues relating to divorce and child custody. There are some cases that even say this. But even if you live in a progressive state whose courts have said this, the simple fact remains that people hear cases. When these people put on black robes they are supposed to leave their personal prejudices behind. But sometime they don't or can't. Thus a judge deciding a custody issue may, at the least, subconsciously be influenced by a sexual lifestyle that he or she considers to be offensive. The ruling may not mention lifestyle and may appear to be decided on other reasons. But underneath, that was the reason.
So consult an attorney right away, and don't be shy about your lifestyle when discussing the case.
A Final Note.
NLA Legal Project, Leather Leadership Conference and what Gays have Done
Law is not static. It changes over time. Changes can occur relatively quickly in the politically driven institutions such as the United States Congress and the state legislatures. But in the courts, change comes slowly. Courts are political too, but react more slowly to public pressure for change. They are meant to be a moderating influence from immediate public pressure. And laws, which should be predictable, are not when they change rapidly. It should also be kept in mind that the law is never absolute. Even in the area of free speech, Justice Holmes wrote that it does not protect someone from "falsely shouting fire in a theatre and causing a panic." (Schenck v. United States, 249 U.S. 47 (1919).
As a young man in the late 60s, I saw the legal profession as way to help bring about the changes in society that I wanted to see. One of them was freedom from governmental interference in people's private sexual affairs. There have been some positive changes. And there have been some areas of great disappointment. But change will come.
In 1872 in Bradwell v. State of Illinois, an Illinois woman was denied the right to be an attorney based solely on her sex. The United States Supreme Court held, "[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."
The Gay and Lesbian community has supported a legal defense and education fund, Lambda, for over 25 years. We need to work toward change in the leather community as well.
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